PENDLEY: Challenging unions’ First Amendment violations

Knox case sets precedent for state bar association

By William Perry Pendley - -
Monday, November 12, 2012

Last month, Scott Lautenbaugh, an Omaha attorney and Nebraska state senator, filed a lawsuit against the Nebraska State Bar Association in federal district court in Omaha. Days later, Mr. Lautenbaugh sought a preliminary injunction and to certify his case as a class action. Mr. Lautenbaugh is an outspoken opponent of the bar’s use of member dues for political and ideological purposes. In fact, he filed a petition with the Nebraska Supreme Court asking that it “de-integrate the bar,” that is, make membership in the bar voluntary.

Currently, membership in the Nebraska State Bar Association is mandatory for all attorneys who practice law in the state. Members’ dues of $345 annually are used not only to regulate, discipline and educate attorneys, but also to support a “Legislative Program,” which includes “the initiation, support, opposition, or comment on legislative matters,” at both state and local levels. During the past two years, for example, the Legislative Program has lobbied on more than 100 bills, including its opposition to legislation expanding concealed-carry permit rights, restricting eminent domain, and eliminating statutes of limitations for some felonies.

Mr. Lautenbaugh believes that because he is required to be a member of the Nebraska State Bar Association, the use of his dues for political and ideological purposes constitutes government-compelled speech and violates his First and 14th Amendment rights. Mr. Lautenbaugh also believes he will prevail because of a ruling issued last June by the U.S. Supreme Court, Knox v. Service Employees International Union, Local 1000, in which the court delivered a far-reaching holding on First Amendment rights — not of unions, as has the court in past rulings — but of their members. Notwithstanding the dearth of media attention Knox attracted, its importance cannot be overstated.

In Knox, a California public-employee union charged nonmembers a fee to cover its collective-bargaining activities, but informed the nonmembers and allowed them to “opt out” of the cost of the union’s political and ideological activities. In June 2005, the union sent out its annual fee statement — monthly dues were 1 percent of gross salary but capped at $45 — noting that 56 percent of the cost of its activities was for collective-bargaining. A short time later, to raise funds to oppose ballot initiatives, the union increased monthly dues to 1.25 percent and lifted the $45 cap. The increase did not permit nonmembers to “opt out,” and those who had opted out earlier still had to pay 56 percent of the increase even though the entire increase was for political activities.

The high court reversed the U.S. Court of Appeals for the Ninth Circuit’s ruling in favor of the union. Justice Samuel Anthony Alito Jr. wrote for the 5-4 majority: “By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Because the union “has no constitutional right to receive any payment from these employees,” concluded Justice Alito, the objecting nonmembers “should not be compelled to subsidize private groups or private speech.”

The applicability of Knox will soon get its first test, not with regard to a public-employee union, but rather to lawyers and the requirement that they be members of their state bar associations. Because the court has held that the constitutional requirements for unions apply to bar associations, and because the Nebraska Bar Association requires Mr. Lautenbaugh to opt out of paying dues used for lobbying purposes rather than providing him the opportunity to opt in, Knox appears to support Mr. Lautenbaugh. Although the applicability to the Nebraska case of other aspects of Knox remains to be determined, one thing seems sure: The Supreme Court appears eager to hear the case that follows Knox. It could be the one filed last month by Mr. Lautenbaugh.

William Perry Pendley is president of Mountain States Legal Foundation.